FISA Court Bans FBI Agent Who Lied To The Court About Carter Page

from the are-you-accepting-applications-for-FISA-court-moderators? dept

The FBI's inability to rein in its agents is causing it more pain. The Inspector General's report released late last year showed agents performed some very selective editing of probable cause to unlawfully prolong the FBI's surveillance of former Trump adviser, Carter Page.

Omitting evidence agents had on hand that Page was not acting on behalf of a foreign power, agents repeatedly extended FISA wiretaps, allowing FBI spooks to continue unjustified domestic surveillance. If you like your Deep State Conspiracy, you can keep it.

But the most probable motivating factor isn't FBI agents' personal dislike of Donald Trump. It's more likely their all-encompassing love of surveillance. The FBI (along with the NSA) has abused the FISA court for years, allowing both agencies to perform domestic snooping under the guise of securing the nation from foreign threats. An agency that's willing to pursue "lying to a federal agent" charges when it's unable to find anything else to go after targets with is one that's willing to engage in surveillance long after it knows continued snooping will fail to uncover evidence of criminal activity.

The FBI has already been told to revamp its warrant request procedures to ensure this abuse doesn't happen again. More significantly, the Inspector General has recommended one FBI official for prosecution after emails were altered to hide wrongdoing from the IG and (presumably) the FISA court. The FISA court went so far as to question nearly everything the FBI has brought to it, given the evidentiary cherry-picking uncovered by the IG's investigation.

A secretive federal court on Wednesday effectively barred F.B.I. officials involved in the wiretapping of a former Trump campaign adviser from appearing before it in other cases at least temporarily, the latest fallout from an internal inquiry into the bureau’s surveillance of the aide.

Judge James Boasberg's order [PDF] accepts the FBI's suggested FISA surveillance remedies, but goes further by offering one of the judge's own: the booting of agents shown to have lied to the court to continue surveillance of Carter Page. He also accepted a recommendation from an appointed adversarial party -- FISA expert David S. Kris -- who suggested the FBI agents who submit affidavits sign those affidavits themselves (rather than field supervisors who may have no idea about the particulars of the request). This makes those agents directly responsible for the factual content (or lack thereof) of the assertions made to request (or extend) wiretaps.

Boasberg's ban goes further than the agents implicated in the latest FBI/FISA bullshittery. Anyone else who fucks up will find themselves on Boasberg's ban list as well.

Judge Boasberg’s new order also directed that no Justice Department or F.B.I. officials “under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing or submitting such applications to the court.”

This won't completely fix the FBI's reluctance to engage honestly with courts. But it will at least head off future abuse of the FISA court for the time being. The only other thing limiting the FBI's malfeasance is Congress itself. Another renewal of surveillance powers is playing out against this backdrop, giving finger-to-the-administration's-wind politicians reasons to bypass a clean reauthorization of (abused) powers. Politically popular reforms may be on the way. While we'd rather see bipartisan recognition that we handed federal agencies way too much power after the 9/11 attacks nearly 20 years ago, we'll also take what we can get -- especially when these restrictions will roll over into the next administration.

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David Kris

It should be pointed put that the appointment of David Kris as amicus curiae has been criticized. Before the IG report came put, Kris made multiple cable TV appearances claiming that the FISA abuse allegations were “false” and “dishonest” and that investigating them was “dangerous”.